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Senate Democrats kept up their attacks Tuesday during the second confirmation hearing for Ninth Circuit U.S. Court of Appeals nominee William Myers III, setting the stage for a filibuster showdown. Although environmentalists strongly oppose Myers, others, including Senate Judiciary Committee Chairman Arlen Specter, R-Penn., see him as one of the less controversial of the judicial candidates President Bush has renominated in his second term. Because they didn’t have enough votes to defeat Bush’s first-term judicial picks outright, Democrats filibustered several nominees, including Myers. Republicans said they won’t stand for that this time around and have threatened to change Senate rules to get rid of judicial filibusters. In his opening statement Tuesday, Specter lamented Democratic “obstruction” but also said he would only sign on to the rule change — the so-called “nuclear option” — reluctantly. “We have to consider this issue from a historical perspective,” Specter said. “One hundred years from now, what are the minority [party's] rights?” Specter also indicated he’s close to having enough votes to break a filibuster without going nuclear. He claimed he already has 58 of the 60 votes necessary for cloture. Specter had hoped to pry apart the logjam in the Senate by holding a hearing on Myers before other, more controversial nominees, such as California Supreme Court Justice Janice Rogers Brown, whom Bush wants on the D.C. Circuit U.S. Court of Appeals. But some outside observers were skeptical of how successful the Judiciary Committee chair would be. “Specter wants to offer an olive branch. I think he’ll find that shoved in the wood chipper,” said Kay Daly, president of the Coalition for a Fair Judiciary, a conservative group that opposes judicial activism. Indeed, if Tuesday was designed to set the stage for a compromise on judges, Democrats showed they weren’t interested. They continued hammering away at Myers’ resume. Now in private law practice in Idaho, Myers served as Interior Department solicitor during Bush’s first term. Before that, he was a lobbyist for the cattle industry and a lawyer for mining interests. Democrats demanded he explain how his background qualified him for sitting on the federal appellate circuit that sees more environmental cases than any other in the nation. Myers defended himself by promising to leave his earlier career roles behind. He said he would have no trouble deciding cases objectively. But Democrats had trouble reconciling his past with a lifetime bench appointment. “Do you stand by the statement that environmental legislation harms the very environment it purports to protect?” said New York Democratic Sen. Charles Schumer, referring to an article Myers wrote. “Do you believe that statement?” “That statement was meant to suggest. �” Myers replied before Schumer cut him off. “I didn’t ask what it was meant to suggest. . . . I want to know if you believe it,” Schumer responded. “I believe that sometimes environmental legislation has a blunt-sword approach to particular problems, that working with the regulated community can result in better environmental protection than legislation, on occasion,” Myers said. “So, in other words, you left out the words ‘sometimes’ [and] ‘on occasion.’ You just wrote sweeping statements?” Schumer asked sarcastically. “Right,” Myers said. Republicans on the committee tried to rehabilitate the nominee, asking a series of softball questions in an effort to portray Myers as an environmentalist himself. Sen. Orrin Hatch, R-Utah, pointed out that Myers defended the Endangered Species Act. And Sen. Tom Coburn, R-Okla., threw out this question regarding Myers’ work for Interior: “Was there ever a time [when] environmental groups praised your work?” “Often what I did, senator, was fairly behind the scenes so I did not appear in the marquee credits. But the actions that I took advanced environmental causes and issues that were praised,” Myers said. Republicans also held up Myers’ history of volunteering at parks and love of outdoor recreation as evidence of his pro-environmental bent. Elliot Mincberg, vice president and legal director of the liberal People for the American Way, said in an interview that the GOP efforts accomplished nothing. Mincberg also said Specter is “premature” in counting 58 votes for cloture. Specter thinks he has three Democratic votes on top of the 55 Senate Republicans. He said he is counting on Democrats Joseph Biden of Delaware, Bill Nelson of Florida and Ken Salazar of Colorado. Biden and Nelson previously voted to end the filibuster. But Salazar could be a problem for Specter. Although he supported Myers while he was attorney general of Colorado, he has since sent a letter asking President Bush to withdraw his judicial renominations. Carl Tobias, a professor at the University of Richmond School of Law who follows the Ninth Circuit and judicial nominations, called the hearing a “good-faith effort” by Specter to start the ball rolling on a compromise. Although he said horse trading judges is dangerous, he pointed out that it could happen, especially because there are four vacancies on the Ninth Circuit. Republicans could say, “Give us Myers, and we’ll give you a moderate,” Tobias said. But he added that if Myers is the least controversial, “then that doesn’t look very promising.” Myers’ first confirmation hearing was in February 2004. The earliest that his renomination could go to the full Senate is mid-March.

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